Cassell v. State of NH

• Court: Court of Appeals for the First Circuit
• Decided: April 28, 1994
• Docket: 93-1557
• Status: Published

Opinion

USCA1 Opinion

April 26, 1994        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                _____________________

          No. 93-1557

                                  JEROME E. CASSELL,
                                Plaintiff, Appellant,

                                          v.

                                BARRY OSBORN, ET AL.,
                                Defendants, Appellees.

                                  _________________

          No. 93-1607

                                  JEROME E. CASSELL,
                                Plaintiff, Appellant,

                                          v.

                           STATE OF NEW HAMPSHIRE, ET AL.,
                                Defendants, Appellees,

                                  _________________

          No. 93-2079

                                  JEROME E. CASSELL,
                                Plaintiff, Appellant,

                                          v.

                                   LINCOLN SOLDATI,
                                 Defendant, Appellee.

                                  _________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                    [Hon. Paul J. Barbadoro, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

_________________

               Jerome E. Cassell on brief pro se.
               _________________
               Jeffrey R. Howard, Attorney General, and Christopher P. Reid
               _________________                        ___________________
          on  brief for appellees, Barry Osborn, State of New Hampshire and
          Governor Steven Merrill.
               Charles  G. Douglas, III, and Douglas & Douglas on brief for
               ________________________      _________________
          appellee Lincoln Soldati.

                                 ___________________

                                 ___________________

Per Curiam.  Plaintiff James E. Cassell, appeals pro se
                    __________                                       ___ __

          from the  district court's dismissal  of three civil  rights com-

          plaints  under 28 U.S.C.   1915(d).  The appeal raises a prelimi-

          nary question as to the proper disposition of infirm civil rights

          monetary  claims  filed during  the  pendency  of parallel  state

          criminal proceedings.

                    Plaintiff was convicted in  a New Hampshire state court

          of  aggravated sexual assault on August 28, 1992.  He filed three

          civil rights  complaints during the pendency of  this state post-

          trial criminal  proceedings and appeal.1   Each complaint alleges

          the wrongfulness  of the state conviction  and asserts violations

          of 42 U.S.C.   1983, or 42 U.S.C.   1985(3), or both.  Two of the

          suits seek equitable relief and damages, the  other only damages.

          The complaints  are rambling,  verbose, and difficult  to follow,

          but to orient  the ensuing discussion,  we provide the  following

          recap  of some  of the  allegations found  in the  complaints and

          related filings.2
                              
          ____________________

               1We are  informed that  the plaintiff's appeal  is currently
          pending before the New Hampshire Supreme Court.  Although neither
          party has requested a  stay on this basis, we  consider the issue
          sua sponte because  of the possible impact  of a decision  on the
          ___ ______
          proper workings of our  federal system.  Cf. Granberry  v. Greer,
                                                   ___ _________     _____
          481 U.S. 129,  134-35 (1986) (if the  State fails to assert  non-
          exhaustion  of remedies  in  a habeas  action,  the court  should
          decide whether comity and  federalism interests are better served
          by reaching the merits or by requiring exhaustion).

               2Plaintiff's filings indicate that,  at least initially,  he
          did  not grasp  the  functional difference  between a  complaint,
          denominated  as such,  and  the numerous  other  papers he  filed
          including "addenda," "memoranda" and  "exhibits."  To clarify his
          claims,  we  perused his  other filings.    The amount  of paper,
          number  of filings,  and repetitive irrelevancies,  are daunting,
          even by  pro se standards.   Our  review in no  way prevents  the
                   ___ __

No. 93-1607.  Filed  on November 6, 1992, the complaint

          names as  defendants a parole  officer, two police  officers, the

          complaining  witness  in  plaintiff's  state criminal  case,  and

          plaintiff's  state trial  counsel.   The gist  is that  the state

          officers  intimidated  the  complaining  witness,  and ultimately

          conspired  with her,  to  falsely accuse  and wrongfully  convict

          plaintiff  of  aggravated  sexual  assault.    Plaintiff's  trial

          counsel is  accused of  ineffective assistance,  incompetence and

          malpractice.

                    No. 93-1557.   Filed on April 13,  1993, this complaint

          names as defendants the State's governor and a county commission-

          er,  in their official capacities, a  local police department and

          unidentified officers  thereof, in both their  official and indi-

          vidual  capacities, and,  again, plaintiff's  trial counsel.   It

          alleges that New Hampshire's  sexual assault laws are unconstitu-

          tional because they are written in a way which encourages consti-

          tutional violations, conspiracies to suborn  perjury and wrongful

          convictions;  and  that  the  state  defendants administered  and

          enforced  the laws  with  extreme indifference  thereby depriving

          plaintiff of due process and equal protection of the laws.

                    No.  93-2079.   This complaint  was filed  on August 3,

          1993, after  the district  court dismissed plaintiff's  first two

          complaints.   It names, as the sole defendant, the prosecutor who

          represented the State at plaintiff's criminal trial.  It contains
                              
          ____________________

          district court  from exercising its  discretion in  this case  to
          fairly  restrict  the number  and length  of  the papers  it will
          review.

                                          4

44 paragraphs and 234 pages of exhibits.  Their crux  is that the

          prosecutor negligently relied upon witness statements obtained by

          the police,  presented perjured testimony  to the jury,  and made

          prejudicial remarks  during trial.   On appeal  plaintiff charac-

          terizes this complaint as  an attack on the prosecutor's  role as

          an investigator  and implies that the prosecutor was negligent in

          giving legal advice to the police officers.

                                  Proceedings Below
                                  Proceedings Below

                    Since  plaintiff  sought  leave  to  proceed  in  forma

          pauperis, the  magistrate conducted a preliminary  review of each

          complaint under 28  U.S.C.   1915(d).  As  to the first two,  the

          magistrate construed  the equitable claims  as requesting  habeas

          relief, and recommended dismissal unless plaintiff showed that he

          had exhausted his state remedies.   The magistrate also  observed

          a  variety of  deficiencies  in the  statements  of the  monetary

          claims.  Following the  usual procedure in such  cases, plaintiff

          was  given an  opportunity to  amend the  complaints to  cure the

          defects outlined, or face a  recommended dismissal for failure to

          state a  claim.  See Forte  v. Sullivan, 935 F.2d 1,  3 (1st Cir.
                           ___ _____     ________

          1991); Purvis v. Ponte, 929 F.2d 822, 826-27 (1st Cir. 1991).  As
                 ______    _____

          to the third complaint,  the magistrate recommended dismissal, on

          the grounds of absolute prosecutorial immunity, without affording

          an  opportunity to amend because the complaint showed on its face

          that it was based on an indisputably meritless legal theory.  See
                                                                        ___

          Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (under   1915(d)
          _______    ________

          the  court may  dismiss  claims based  on indisputably  meritless

5

legal theories or delusional factual scenarios).

                    Plaintiff's responses  to  the magistrate's  first  two

          reports included  exhibits which  suggested, for the  first time,

          that  the state  criminal prosecution  remained pending.3   While

          the district court was thus aware of the possible pendency of the

          state case when it undertook its  review, it did not focus on the

          effect a  decision on the monetary claims might have in the state

          case.4   After  de novo  review, the  district court  adopted the

          magistrate's  reports and  recommendations for  dismissal on  the

          various other legal grounds.

                                      Discussion
                                      Discussion

                    The court's dismissal of plaintiff's   1983 claims  for

          equitable  relief must be affirmed.   These claims  have at their

          root an attack on the  validity of the state conviction and  seek

          plaintiff's release from confinement.   Consequently, they may be

          pursued only by petition  for habeas corpus, after  the plaintiff

          has exhausted his state remedies.  Preiser v. Rodriguez, 411 U.S.
                                             _______    _________

____________________

               3Plaintiff  responded to  the magistrate's  first  report by
          filing  an  amendment, with  exhibits,  to  the first  complaint,
          followed  by a series of lengthy addenda.   He chose not to amend
          his second complaint,  but filed a lengthy  objection with exhib-
          its.  He also objected to the recommended dismissal of his  third
          complaint, filing additional exhibits which contained papers from
          the pending criminal proceedings.

               4The  court also  had before  it a  motion by  plaintiff for
          "federal interdiction" in the state proceedings, which was denied
          under Younger  v. Harris, 401 U.S. 37 (1971).  This ruling is not
                _______     ______
          challenged on appeal.

                                          6

475,  490 (1973).5   A  section 1983  action may  not be  used to

          circumvent the  exhaustion  requirement's important  function  of

          avoiding federal-state friction  by permitting  state courts  the

          first opportunity  to correct  their constitutional errors.   See
                                                                        ___

          Guerro v. Mulhearn, 498 F.2d 1249, 1251-52 (1st Cir. 1974).
          ______    ________

                    Disposition  of  the   damages  claims,  too,  requires

          consideration  of the effect the court's decision may have in the

          pending state  proceedings.   "[A] suit for  money damages  under

          section 1983 may also have a substantially disruptive effect upon

          contemporary state criminal proceedings, and  may . . . undermine

          the integrity of the writ of habeas corpus."  Id. at 1252.   When
                                                        ___

          there  is "no  question that  the [complaint]  allege[s] injuries

          under  federal law  sufficient  to justify  the District  Court's

          retention of  jurisdiction," civil  rights monetary claims  which

          cannot be  asserted in a parallel state proceeding ordinarily are
                              
          ____________________

               5We  glean  in  plaintiff's  complaints  and  amendments  no
          suggestion  of  the rare  circumstances  that  might  lead to  an
          exception to  the habeas exhaustion requirement.   See Granberry,
                                                             ___ _________
          481 U.S. at  131 (discussing exceptional circumstances).   In any
          event, plaintiff's  exhibits below  indicate that in  addition to
          these cases, he  also filed a separate suit for  habeas relief in
          the district  court.   That  petition is  not before  us in  this
          appeal, and we express no opinion on its merits.
               In  general, however, we note that when a plaintiff is given
          an opportunity  to amend  habeas claims mistakenly  brought under
            1983,  it is  advisable to  require him  to replead  his habeas
          claims on a  form petition.   See Rules  Governing   2254  Cases,
                                        ___
          Rule 2.  Although  no universal palliative for pro  se confusion,
                                                         ___  __
          the  form petition assists both  the petitioner and  the court by
          guiding the petitioner toward an orderly statement of claims, and
          the status of the  state proceedings.  The habeas claims may then
          be readily identified for processing  under the rules relating to
          habeas petitions,  including  those relating  to habeas  appeals.
          Where  there are  also  separate monetary  claims, the  court may
          simultaneously  consider the common  issues.  See  Guerro v. Mul-
                                                        ___  ______    ____
          hearn, 498 F.2d 1249, 1254 n.15 (1st Cir. 1974).
          _____

                                          7

stayed pending completion  of the  state case.   Deakins v.  Mon-
                                                           _______     ____

          aghan, 484 U.S. 193, 204 (1988).  A stay allows the state case to
          _____

          go forward "without interference  from its federal sibling, while

          enforcing the duty of federal courts 'to assume jurisdiction were

          jurisdiction properly  exists.'"   Id. at 202-03  (citation omit-
                                             ___

          ted).   Preferring a stay  to a dismissal  without prejudice also

          avoids the possibility  of a  later time bar  under the  borrowed

          statute of limitations.  Id. at 203 n.7.
                                   ___

                    In this case, however, we are met with three complaints

          containing various  types and degrees of defects  in their asser-

          tions of federal civil  rights monetary claims.  Under  28 U.S.C.

            1915(d),  a district court has authority to dismiss an in forma

          pauperis complaint "if  satisfied that the action is frivolous or

          malicious."   "[A] litigant whose filing fees and court costs are

          assumed by the public, unlike a paying litigant, lacks an econom-

          ic  incentive to  refrain  from filing  frivolous, malicious,  or

          repetitive  lawsuits."   Neitzke, 490  U.S. at  324.   To prevent
                                   _______

          abuse, and to spare prospective defendants the expense of answer-

          ing such  complaints, the district court, acting  sua sponte, may
                                                            ___ ______

          dismiss claims based on  an "indisputably meritless legal theory"

          or "clearly baseless" factual allegations.  Id. at 327; Denton v.
                                                      ___         ______

          Hernandez, 112 S. Ct. 1728, 1732-33 (1992).
          _________

                    During the pendency of parallel state criminal proceed-

          ings, there is  as much  potential for abuse  from the filing  of

          frivolous federal complaints  as at  any other time.   There  may

          even be  an added danger, as the state court defendant may seek a

8

federal  forum solely to gain  a tactical advantage  or to harass

          the  prosecuting  authorities  and witnesses.    Section  1915(d)

          permits the district court to intercept and dismiss frivolous and

          malicious claims filed at such time, or any time.  The preference

          expressed in Deakins, 484  U.S. at 204, for staying,  rather than
                       _______

          dismissing, cognizable federal  claims that allege  facts "suffi-

          cient to justify the District Court's retention of jurisdiction,"

          does  not come into play  where the claims  asserted are patently

          frivolous.6

                    Where a complaint filed under   1915(d) appears legally

          deficient, though perhaps  not frivolous "in the  hard core sense

          described in Neitzke,"  we have held that a  court may proceed to
                       _______

          decide  whether it  should be  dismissed for  failure to  state a

          claim, after affording the  plaintiff the "practical  protections

          typically given paying plaintiffs under Fed. R. Civ. P. 12(b)(6).

          Purvis, 929 F.2d at 826-27; Forte, 935 F.2d at 3  (same).  Comity
          ______                      _____

          concerns may  be implicated in such  decisions, however, particu-

          larly when  the complaint challenges a  state criminal conviction

          which has not yet become final.  See Guerro, 498 F.2d at 1255.
                                           ___ ______

                    Should the district court's decision require a determi-

          nation of matters at  issue in a pending state  criminal proceed-

          ing, a stay is the only option, since "the potential for federal-
                              
          ____________________

               6Ordinarily,  a  dismissal  for  "frivolousness"  would  not
          preclude  issues that might be raised in the state court proceed-
          ing.   In the  unlikely event  that such  a case  arose, however,
          caution  would  be indicated  for  the  reasons suggested  below,
          especially  where it was intended  that the dismissal  be "on the
          merits."  See Denton, 112 S. Ct. at 1734 (discussing res judicata
                    ___ ______                                 ___ ________
          effect of   1915(d) dismissal).

                                          9

state friction is obvious."  Deakins, 484 U.S. at 208 (White,  J.
                                       _______

          concurring, quoting Guerro, 498 F.2d at 1253).  Conversely, where
                              ______

          the decision will not affect issues which should first be decided

          by the state court,  the district court need not  delay its deci-

          sion.   Accord Duncan  v. Gunter,  15 F.3d  989 (10th  Cir. 1994)
                  ______ ______     ______

          (affirming dismissal on grounds  which need not be first  decided

          in state  proceedings); cf. Bettencourt v.  Board of Registration
                                  ___ ___________     _____________________

          in  Medicine, 904  F.2d 772,  781 (1st  Cir. 1990)  (civil rights
          ____________

          claims which cannot be asserted in parallel pending state licens-

          ing  case normally  should  be stayed,  but where  quasi-judicial

          immunity  and  sovereign  immunity  barred  consideration of  the

          claims  by  the federal  court,  they  were properly  dismissed);

          Williams  v. Hepting,  844 F.2d  138, 143-45  (3d  Cir.) (staying
          ________     _______

          certain claims and simultaneously, without  discussion, affirming

          dismissal of  other claims on grounds of witness immunity), cert.
                                                                      ____

          denied,  488 U.S. 851 (1988); Bressman v. Farrier, 900 F.2d 1305,
          ______                        ________    _______

          1309 (8th Cir. 1990) (staying certain claims but dismissing time-

          barred claims), cert. denied, 498 U.S. 1126 (1991).
                          ____  ______

                    In pro se cases, accurate identification and comparison
                       ___ __

          of the issues in the federal and state proceedings may  be diffi-

          cult.   To  avoid  conflict, caution  is  indicated whenever  the

          ground for decision is  one that ordinarily might be  asserted as

          res  judicata in a state  criminal proceeding.   See Deakins, 484
          ___  ________                                    ___ _______

          U.S.  at 208;  Guerro, 498  F.2d  at 1253.   In  such cases,  the
                         ______

          district  court may  exercise its  discretion under    1915(c) to

          order service on the defendants or otherwise obtain assistance in

10

pinpointing the  issues and the status of  the state proceedings,

          or  it may choose,  sua sponte, to  order a stay  until the state
                              ___ ______

          proceedings are  terminated.  Cf.  Granberry, 481 U.S.  at 133-35
                                        ___  _________

          (affirming similar discretion, sua sponte, to  require exhaustion
                                         ___ ______

          of  habeas remedies even where defendant waives the defense).  In

          the  event the  court decides  to stay  the monetary  claims, the

          habeas and   1983 claims may be  considered simultaneously at the

          conclusion  of the  state  court proceedings,  thus reducing  the

          burden on  the parties and the  court.  Guerro, 498  F.2d at 1254
                                                  ______

          n.15.

                    Applying  these  principles  here,  there  seems little

          question that  most of plaintiff's monetary  claims were properly

          dismissed, rather than stayed, since only one species of monetary

          claim is not based on an "indisputably meritless" legal theory as

          a  matter of  federal law.   Dismissals on  this basis  would not

          implicate any issue in the state criminal proceedings.

                    The claims plaintiff asserts under    1985(3) cannot be

          sustained because  there is  no showing that  defendants' actions

          were directed against a  protected class as required to  found an

          action under that statute.  See Bray v. Alexandria Women's Health
                                      ___ ____    _________________________

          Clinic,  113 S. Ct. 753  (1993).  The  claims against plaintiff's
          ______

          state trial  attorney  are  barred because  there  are  no  facts

          suggesting that his conduct was under "color of state law."  Polk
                                                                       ____

          County  v. Dodson, 454 U.S. 312 (1981)  (public defender is not a
          ______     ______

          state actor for  purposes of   1983);  Malachowski v. Keene,  787
                                                 ___________    _____

          F.2d 704,  710 (1st Cir.) (court-appointed  private attorney does

11

not act under  "color of state law"), cert.  denied, 479 U.S. 828
                                                ____   ______

          (1986).  The claims against the prosecuting witness also fail for

          lack  of any showing  that she acted under  "color of state law,"

          and because her trial testimony is entitled to absolute immunity.

          See Briscoe v. LaHue, 460 U.S.  325, 329-36 (1983).  The monetary
          ___ _______    _____

          claims  against  state officials,  in  their official  capacities

          only, are barred  by Eleventh  Amendment immunity.   See Will  v.
                                                               ___ ____

          Michigan Dep't of State Police, 491 U.S. 58, 70-71 & n.10 (1989).
          ______________________________

          The claims against the State's prosecuting attorney are barred by

          the  federal doctrine  of absolute  prosecutorial immunity.   See
                                                                        ___

          Burns  v. Reed, 500 U.S.  478, ___ (1991)  (prosecutors are abso-
          _____     ____

          lutely immune from   1983 liability for conduct in initiating and

          presenting  state's case  insofar  as the  conduct is  intimately

          associated with the judicial phase of the  criminal process); see
                                                                        ___

          also Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2616 (1993) (quali-
          ____ _______    ___________

          fied immunity extends to  investigatory functions and administra-

          tive functions).  Although  some of the claims against  the state

          prosecutor  arguably challenge conduct  covered only by qualified

          immunity, they are infirm for the additional reason that they are

          grounded in alleged negligence.   Mere negligence is insufficient

          to implicate  due process protections.   Davidson v.  Cannon, 474
                                                   ________     ______

          U.S. 344, 348 (1986); Daniels v. Williams, 474 U.S. 327 (1986).7
                                _______    ________

                    The  dismissal of  plaintiff's monetary  claims against

____________________

               7Although  the  complaint contains  boilerplate "conspiracy"
          allegations,  the only specific conduct alleged in it, and in the
          numerous exhibits attached, reveals that the claims are based, at
          most, on simple negligence.

                                          12

the state  officers in their individual  capacities (No. 93-1607)

          is  more problematic.   Plaintiff's  "amendment" attempts  to tie

          these claims to a challenge  to the state's criminal law, and  to

          the same facts and  legal arguments he is advancing  in the state

          case.   The court's dismissal was  broadly based on a  failure to

          state sufficient  facts to sustain  a claim, a  decision arguably

          susceptible  of being raised as  an estoppel in  the state court.

          Plaintiff's  disorganized presentation  makes it  difficult accu-

          rately  to compare  the issues in  the two  proceedings or  to be

          certain whether there  are alternate grounds  for dismissal.   We

          therefore  think the  more efficient  course is  to remand  these

          claims to the district court for reconsideration, consistent with

          this opinion,  as  to  whether their  legal  sufficiency  can  be

          determined without  in  any way  affecting  issues in  the  state

          criminal case, or whether  these claims should be stayed  pending

          completion of the state court proceedings.

                    Accordingly, the judgment dismissing the  complaints in

          93-1557 and  93-2079 is  affirmed.   The judgment  dismissing the
                                   ________

          complaint in 93-1607 is affirmed in part and vacated in part, and
                                  ________________     _______________

          the  case  is remanded  to  the  district court  for  proceedings

          consistent with this opinion.

13